This is an action for damages to recover the cost of replacement of 78 joints for a faulty installation of a sewerage system located in the city of Alexandria. The meat of the coconut for a determination of responsibility is the proximate cause for the damaged installation.
The city contends that the failure of the installation was due to subsidence or faulty soil conditions. The contractor argues that the proximate cause of the collapse was due to defective plans and specifications. The city, before issue was joined, filed an exception of vagueness to compel the contractor to specify with particularity in what respects the plans and specifications were defective. The district court overruled this exception. The record shows that the contractor installed 1,500 joints, that 1,422 were installations made according to specifications and that the remaining 78 joints that collapsed were installed in the location where there was the defective soil condition. This showing is conclusive because the physical facts prove that the collapse was due to the defective soil condition and not to any defects in the plans and specifications. *Page 907
In the majority opinion it is stated that the City Engineer should have specified "a cradle" to be placed where the defective soil condition was found. This is a refinement adding to the obligation of the law of contract. The Engineer can do only those things that were visible. The soil was good for 1422 joints. His specifications were proper. He has no X-ray eyes to see into the bowels of the earth. Under the contract, the contractor was obligated to furnish the materials and the labor to do the work and it was the contractor's obligation to see that the soil was of sufficient strength to support the weight of the sewerage pipes. Our own court speaks with authority. The contractor is not entitled to recover additional compensation because of defects that are encountered by him in the performance of the job. Picard v. Levee Board, 161 La. 1002,109 So. 816; O'Leary v. Board of Commissioners, 150 La. 649,91 So. 139; Terrell Constr. Co. v. Town of Pineville, 168 La. 894,123 So. 611.
The majority opinion of this court herein pitches its findings on the case of United States v. Spearin, 248 U.S. 132,39 S.Ct. 59, 61, 63 L.Ed. 166. The holding in that case fits this case like a glove modeled for a beautiful woman. The court was careful in stating the general rules of law and then the exception to that general rule. So held the court: "Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because *Page 908 unforeseen difficulties are encountered." Day v. United States,245 U.S. 159, 38 S.Ct. 57, 62 L.Ed. 219, Phoenix Bridge Co. v. United States, 211 U.S. 188, 29 S.Ct. 81, 53 L.Ed. 141. The contract here was possible of performance because the contract was performed by Boh Construction Company and it is the cost of a suitable installation that is the subject of this litigation. With plastic adaptation, the United States Supreme Court continues with language fitting the instant case: "Thus one who undertakes to erect a structure upon a particular site, assumes ordinarily the risk of subsidence of the soil." Simpson v. United States, 172 U.S. 372, 19 S.Ct. 222, 43 L.Ed. 482, Dermott v. Jones (Ingle v. Jones), 2 Wall. 1, 17 L.Ed. 762. Under this general law the contractor is liable. We have no exception of a contract beyond the control of the contractor. The opinion seeks to make the city liable on an exception to the general law. In the quoted United States Supreme Court opinion, the exception to the general law reads as follows: "But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications." MacKnight Flintic Stone Co. v. New York, 160 N.Y. 72,54 N.E. 661; Filbert v. Philadelphia, 181 Pa. 530, 37 A. 545; Bentley v. State, 73 Wis. 416, 41 N.W. 338. See Sundstrom v. State,213 N.Y. 68, 106 N.E. 924. The United States Supreme Court *Page 909 points out and it was shown that the defects in that case were in the specifications — the engineer had provided for a pipe too small and it broke because of intensive water pressure — this was a matter over which the contractor had no control and faulty specifications (inadequate pipes) were the proximate cause of the damaged installation. That case falls within the exception to the general law but in the instant case we have no such condition as faulty specifications or faulty pipes. What would be the consequence were the rule of law announced by the majority opinion applied to drilling contracts for oil, gas, and water? If under such contracts the engineer were required to provide in his specifications for the hazards of a stone strata underground when the contract was for boring at so much per foot. The rule would restrict the exploration for oil, gas, etc., because it would make the owner the insurer of all hazards of the undertakings by the contractor and would penalize the owner in making his improvements. A rule that enriches a contractor at the expense of a public improvement for the city is inequitable.